Judge: Holly J. Fujie, Case: 23STCV03131, Date: 2023-09-19 Tentative Ruling

Case Number: 23STCV03131    Hearing Date: December 15, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Thien Pham (“Moving Defendant”)[1]

The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

            This action arises out of an employment relationship.  On February 14, 2023, Plaintiff filed the Complaint alleging: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) fraud and deceit; (4) breach of fiduciary duty; (5) constructive fraud; (6) conversion; (7) misappropriation of trade secrets in violation of Civil Code section 3462; (8) violation of Business and Professions Code section 17200; and (9) declaratory relief.

On September 19, 2023, the Court overruled Moving Defendant’s demurrer to the Complaint and ordered Moving Defendant to file an answer. 

On November 6, 2023, Moving Defendant filed a second demurrer (the “Demurrer”) to the Complaint on the grounds that the Complaint alleges insufficient facts to constitute a cause of action because Plaintiff lacks standing.  On November 6, 2023, Moving Defendant also filed a motion to strike the Complaint due to Plaintiff’s lack of standing (the “Motion”).

            On December 4, 2023, Plaintiff filed a first amended complaint (the “FAC”).

DISCUSSION

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Timeliness of the Demurrer and Motion

A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.  (CCP § 430.40, subd. (a).)  Motions to strike are subject to the same timing requirements.  (See CCP § 435, subd. (b)(1).)

Neither the Demurrer nor the Motion include arguments or authorities that articulate a basis for their proper consideration after Moving Defendant’s earlier unsuccessful challenge to the legal sufficiency of the Complaint.  Furthermore, the Demurrer and Motion rely on evidence outside the pleadings, and neither filing includes a request for judicial notice in the proper format.  (See California Rules of Court, r. 3.113(l).)  As a result, the Court declines to consider Moving Defendant’s substantive arguments. 

Based on the foregoing, the Court OVERRULES the Demurrer and DENIES the Motion.

The Court additionally observes that the FAC was improperly filed.  Under CCP section 472, subdivision (a), a party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.  (CCP § 472, subd. (a).)  A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.  (Id.)  As previously noted, the Court overruled Moving Defendant’s initial demurrer to the Complaint on September 19, 2023, and the window for filing an amended pleading without leave of court or stipulation has closed.  The stipulation filed and entered on October 26, 2023 represents an agreement only to extend Moving Defendant’s deadline to file an answer to the Complaint.  Accordingly, the Court finds that the Complaint remains the operative pleading and STRIKES the FAC due to its improper filing.  (See Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573.)

Moving party is ordered to give notice of this ruling. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 15th day of December 2023